Weeks v Newham College Of Further Education (Sex Discrimination : no sub-topic) [2012] UKEAT 0630_11_0405

EAT
Weeks v Newham College Of Further Education (Sex Discrimination : no sub-topic)
[2012] UKEAT 0630_11_0405 · 2012-05-04
[1]This is an appeal from a Judgment of the Employment Tribunal sitting in East London delivered on 29 March 2010. After a hearing that had lasted some two weeks and a further four days of deliberation, the Tribunal dismissed claims that the Claimant had suffered a detriment for making a public interest disclosure, that she had been subject to sexual harassment and had been victimised for complaining of sexual harassment. Background[2]The Judgment is long. It records a litany of complaints, but at the outset of dealing with the facts the Tribunal went to some length to express and explain a conclusion as to the Claimant’s credibility. It found that the Claimant had exaggerated most of the incidents of which she had complained, had invented others, could take some comments and blow them up into something entirely different, and had attributed some misfortunes to malevolent conduct against her without there being any proper reason to do so. It found at a later stage that she had been motivated by a hostility towards a fellow employee in some of her complaints.[3]Understandably, the Claimant has described those findings as being damning, an assessment that Mr Hare, for the Respondent, has sought to emphasise in his submissions to us. We should make it plain that in her submissions to us Ms Weeks has appeared the soul of moderation, and has put her case without any apparent rancour, with cogency and with some skill, despite plainly being no lawyer. We are however bound by the findings that the Tribunal made as to credibility, which include the finding at paragraph 59 that where there was a conflict of evidence the Tribunal would, for the reasons it expressed as to the deficiencies of Ms Weeks’ evidence, prefer the evidence of other witnesses. The Tribunal was not averse from commenting on the credibility of some witnesses called for the Respondent. In one instance, it felt that Mr Sweeney had not been frank with the Tribunal, and, in respect of another, it felt that his evidence had been muddled and unreliable; but overall its assessment was that it could not rely upon the Claimant where there was a conflict.[4]The Claimant sought to appeal on a number of issues that were purely issues of fact. It was plain to us that she did not accept many of the factual findings but equally that she now accepts that, short of perversity or material misapprehension of the evidence, this Tribunal must accept the conclusions as to fact of the Tribunal below, which include, sadly for her in this case, that as to her credibility. When, upon a third revision of the Notice of Appeal, the matter came before HHJ Birtles for hearing, he identified two potential matters of law, and, despite the wide canvas originally drawn, they remain the only two points argued before us. They are that the Tribunal could not properly have reached the conclusion it did as to sexual harassment in paragraphs 233‑236 of its Judgment, nor could it reach the conclusions it did as to victimisation contrary to section 4 of the Sex Discrimination Act (SDA) that it did between paragraphs 238 and 241.[5]It is unnecessary for present purposes to set out the facts in any greater detail than needed to resolve those issues of law. The background to sexual harassment was the factual findings that the Tribunal made as to an event in October 2006. Mr Sweeney circulated to his colleagues an animated cartoon described as “The screaming woman”. It consisted of a cartoon of an elderly woman holding her hands up, her top drops away, and her nipples are depicted as being twisted by a pair of hands. Mr Sweeney said he did not recall sending it. He gave evidence he did not recognise the picture. The Tribunal did not accept his evidence as to that.[6]At paragraph 73 the Tribunal said:
“It seems that the tone of conversation in the staff room [we interpose to say that the Claimant was employed as a teacher at the Newham College of Further Education] was from time to time ‘unfortunate’. Mr Sweeney acknowledged that reference had been made to ‘girlie chat’, to women directors who ‘did nothing but look nice’, remarks had been made about ‘power dressed women’ and the ‘Principle’s [sic] harem’.”
[7]The Tribunal commented:
“Whilst we accept that these particular expressions may have been used once only, it is likely that similar things were said too.”
[8]At paragraph 74 they continued:
“Some time in June 2007 a Mr George Goldsmith was giving a demonstration on something called ‘digital brain’. He was answering a question from Mr Sweeney and at the same time the Claimant was talking to somebody else, Claudette Pervil. The conversation was across Mr Sweeney, he couldn’t hear what was being said, he held up his hand and said, ‘hang on’ explaining that he could not hear. In reaction, the Claimant said, ‘how dare you’ and in a subsequent argument Mr Sweeney told her not to be a drama queen.”
[9]Those findings are underpinned by a finding made in paragraph 75 that a fellow teacher, a Ms Francis, made a complaint in June 2007 in the course of which she made reference to Mr Sweeney’s use of the expressions “girlie chatter” and “female power‑dress”. The Tribunal had to determine whether the sending of that email and the use of those expressions constituted harassment such that section 4A of the SDA 1975 , which was then applicable, was satisfied. Section 4A reads, so far as material, as follows:(1) For the purposes of this Act, a person subjects a woman to harassment if— (a) he engages in unwanted conduct that is related to her sex or that of another person and has the purpose or effect— (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, (b) he engages in any form of unwanted verbal, non‑verbal or physical conduct of a sexual nature that has the purpose or effect— (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her […].(2) Conduct shall be regarded as having the effect mentioned in sub‑paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.”[10]That there was a bad environment generally within the staff room was acknowledged by the Tribunal in a number of paragraphs; see, in particular, paragraph 99, when that was reported to the Respondent by another employee, Mr Carey, but where the reasons for saying that the environment was vile had, as the Tribunal set out, nothing to do with a bullying or sexist environment and had everything to do with ineffective management and the role of some employees in the trade union. Similarly, there were references on a number of occasions to strained relationships causing a poor environment or bad atmosphere, which were summed up, perhaps, by the Tribunal saying at paragraph 222:
“The Claimant complained that she was ostracised by her male colleagues in her staff room. As we have just observed, there probably was what might be described as a bad atmosphere, but she has greatly overstated it. Mr Sweeney and Mr Watson attempted to be civil and professional. What ever the atmosphere in the staffroom, it was nothing to do with the fact that her colleagues were male.”
[11]Although the question, in any case alleging harassment, may be thought to be more to do with the fact that the victim is of the sex she or he is than the sex of the perpetrators, this is, in context and in effect, a finding that the conduct toward her, though unacceptable, was nothing to do with her sex. At paragraph 228.9, in the context of dealing with the allegations that she had been subjected to a detriment by reason of making public interest disclosures, a finding that ultimately does not come for appeal here, the Tribunal repeated that they did not find that the Claimant had been ostracised but that there was an unpleasant atmosphere not deliberately created by the Respondent and not ignored by the Respondent; that the colleagues were male was irrelevant.[12]When the Tribunal came to deal specifically with the case in respect of sexual harassment, it said this, in paragraphs that deserve to be quoted in full: “233. Has the Claimant proven facts from which we could conclude, absent an explanation from the Respondent, that she has been subjected to Sexual Harassment? She has proven that in October 2006 Mr Sweeney sent the ‘Screaming Woman’ cartoon. We also accept that expressions such as ‘power dressed women’ and the ‘Principal’s Harem’ were used. Mr Sweeney did make reference to ‘girlie chat’ and he referred to the Claimant as a ‘drama queen’. These are facts from which we could conclude that the Claimant has been subjected to conduct related to her sex which has the purpose or effect of violating her dignity and of creating an intimidating, hostile, humiliating or offensive environment for her.[234]Has such an environment been created? What of the Respondent’s explanation? Mr Sweeney used the expression ‘drama queen’ once to the Claimant, in the context of an argument between them following the demonstration of ‘digital brain’. Similarly, references were made once only to the ‘Principal’s Harem’, to ‘Power Dressed Women’ (neither aimed at the Claimant) and to ‘girlie chat’. Mr Sweeney claimed not to recall the ‘screaming women’ cartoon, but we did not believe him about that. We were troubled by this. We do believe that if the Claimant was offended by such remarks she would have said so. It is surprising she did not protest about the cartoon when she received it, though that she was an agency worker may have had something to do with that. Applying the 3 step approach recommended in Richmond Pharmacology [ Ltd v Dhaliwal [2009] IRLR 336 ]: 234.1. Did the Respondent engage in unwanted conduct? The cartoon and the remarks were unwanted conduct. Although no protest was made by the Claimant at the time, we accept that the Claimant did not ‘want’ to hear these expressions or receive that cartoon. 234.2. We do not find that the purpose of Mr Sweeney (or his colleagues) was to create the proscribed adverse environment. Nor in the circumstances, do we consider that these particular words or similar that may have been used could reasonably have been considered as having that effect, even having regard to the Claimant’s perception. The cartoon was the most troubling aspect, but taking all the surrounding facts into consideration: the context of the comments, their very occasional use, the lack of objection at the time and the timing of the objection raised; on balance we find that they did not have and should not reasonably be regarded as having, the proscribed effect. 234.3. The comments/cartoons were of course, related to the sex of others, though not of the Claimant. The only comment directed at the Claimant was ‘drama queen’ which may be directed at a person of either sex.235. We considered whether on the basis of these facts, the inference should be drawn that Mr Sweeney had also informed the Claimant and Ms Francis that women were less competent than men and not suitable for teaching in colleges, telling the Claimant that women are unstable and neurotic, that all women are drama queens, that pregnant women are a burden the cost of whom was outrageous and not worth it, or that he made jokes about the difficulty of telling a difference between a fat women [sic] and a pregnant women [sic]. Our conclusions are that having regard to the demeanour of Mr Sweeney, these allegations are outrageously fantastic and beyond any credibility what so ever. We find that these words and expressions were not used.236. The Claimant suggested that Mr Harris [he being the Respondent’s director of young people’s academy] had threatened her with suspension and that this was an act of sexual harassment. Mr Harris did not threaten her with suspension. His conduct of the meeting between himself, Mr Carey and the Claimant was appropriate […] was reasonable and could not be described as conduct that related to the Claimant’s sex or of a sexual nature.”[13]We shall deal with the appeal in respect of those findings first before we turn to the appeal in respect of victimisation. The harassment appeal[14]For the Appellant, it is said that the Tribunal took into account factors it should not have taken into account. Thus the fact that the unwanted conduct was not directed at the Claimant, the fact that the terms used had been used on occasion only, and the timing of the objection used were irrelevant considerations. Therefore, because the Tribunal had had regard to those matters, it had not adopted the correct legal approach. In the grounds of appeal the Claimant supported her contention that it was wrong to take into account as part of the circumstances that the unwanted conduct in large part was not directed at her. She draws attention to the fact that it does not defeat a claim for harassment that the comments found to create the intimidating, hostile, degrading et cetera environment are made to others. Where comments are made that are gender‑specific and derogatory towards women generally, she might rightly be offended.[15]That is supported by reference to the case of Moonsar v Fiveways Express Transport Ltd [2005] IRLR 9. That was a case in which a woman data entry clerk shared an office with men who on three occasions downloaded pornographic images to a screen or screens in the room where they were all working. The Tribunal declined to find that there had been sex discrimination. It was argued, for her, that the Tribunal should have, but did not, consider that the burden of proof had shifted, as it should have done, for the employer to explain the conduct. The Appeal Tribunal accepted that point; since there had been no explanation by the employer in the circumstances of that case, there was no explanation to satisfy the burden of proof, and therefore the matter was remitted to the Tribunal with a declaration that discrimination had been made out.[16]Here, as the Tribunal has expressed itself, there was evidence to be set against the inference that might otherwise be drawn from the circumstances that the Tribunal set out. The error the Tribunal in Moonsar fell into of not regarding the burden of proof as shifted did not apply to the present case, where the Tribunal held the opposite. Moonsar is therefore, as it seems to us, of no real assistance.[17]The Notice of Appeal adopted as the skeleton argument seeks to rely also upon Driskel v Peninsula Business Services Ltd [2000] IRLR 151 . That was a case in which, summarising, a single act was regarded as being capable, as the Tribunal had found, of amounting to discrimination. That case was heard and determined upon law that pre‑dated the introduction of a detailed code proscribing sexual harassment. The Tribunal here was not asked to consider this case as one of sexual discrimination under section 1 of the SDA 1975 but under section 4A. Thus, although we would entirely accept that a single act or a single passage of actions may be so significant that its effect is to create the proscribed environment, we also must recognise that it does not follow that in every case that a single act is in itself necessarily sufficient and requires such a finding.[18]The Appellant complained to us that the circulation of the cartoon would have been a sufficient single act as per Driskel to have created the environment of which the Act speaks. As to the cartoon, we should say this. As we indicated during the course of the hearing, we regarded the cartoon as described by the Tribunal as being offensive, disgusting and unacceptable. The industrial members would add that in any well‑regulated organisation they would expect anyone who circulated such a cartoon to be the subject of disciplinary action. None of us felt in the least comfortable with the suggestion that in some way it might have been acceptable conduct, but, to be fair to Mr Hare, he does not, in his submissions for the Respondent, suggest that it was.[19]However, we have to recognise that it is not for us to make a judgment about the impact of such a cartoon upon those in the workplace, and the Claimant in particular; that is the task for the Tribunal. Mr Hare, in his submissions, points out that where a Tribunal has properly directed itself in law and appeared to apply its self‑direction to the facts it has found, then its conclusion as to whether what has happened has had the purpose or, separately viewed, the effect of violating the dignity of the employee concerned or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her is a decision of fact. He submits that as such it can only be set aside if the conclusion is perverse, and he asks us, whatever our distaste for what is reported may be, to acknowledge that we cannot conclude, in the circumstances of this case, that the decision necessarily was perverse. He supports that approach by arguing here that in Dhaliwal the Employment Appeal Tribunal gave a clear direction as to the questions that a Tribunal should answer. It did so at paragraphs 10 and 17. Each of the matters suggested by the formal analysis conducted by the Tribunal was identified by the Tribunal here; that is not in serious dispute before us. Accordingly, he is right here to submit, as we see it, that the Tribunal directed itself properly in law subject only to the points raised in the Notice of Appeal.[20]As to those, we would say this. A decision of fact in a context such as this must be sensitive to all the circumstances. Context is all‑important. The fact that unwanted conduct was not itself directed at the Claimant is a relevant consideration. It does not prevent that conduct being harassment, and will not do so in many cases, but we cannot say it is an irrelevant consideration. Indeed, Ms Weeks, in the course of her submissions, realistically accepted that that might well be so. The timing of an objection has an evidential importance. It may mean that the individual complaining of conduct after the event did not in fact perceive the conduct as having the offensive qualities spoken of in section 4A(1)(a)(ii) or 4A(1)(b)(ii) of the Act. We would urge caution for a Tribunal in placing too much weight upon timing. Where conduct is directed toward the sex of the victim, it may be very difficult for the victim personally, socially and, in particular, in some circumstances, culturally, to make any immediate complaint about it. The fact of there being no immediate complaint cannot prevent a complaint being justified, but equally we cannot say that it is a factor that a Tribunal is not entitled to consider as part and parcel of the overall circumstances that it has to gauge. The fact that terms that are plainly related to gender, such as “girlie chat”, “power‑dressed women” and “harem”, are used only once in the course of a fairly lengthy period of time, again, would not prevent in an appropriate case, and with appropriate surrounding circumstances, those comments being seen to create the environment spoken of.[21]However, it must be remembered that the word is “environment”. An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff‑room concerned. We cannot say that the frequency of use of such words is irrelevant. For example, if the conclusion of the Tribunal here had been that the words were used all the time, in effect, in regular conversation, one would have expected the ultimate conclusion to be very different and to have required the Respondent as employer of the other staff concerned to have given some explanation as to its action or inaction about it. It seems therefore that none of the factors that the Tribunal says it took into account amongst others could be said to be a factor it should not have taken into account. In our view, therefore, the Tribunal cannot be said to have been in error by taking account of irrelevant factors. Their weight is another matter: but, short of a perverse conclusion, is a matter for the Tribunal and not for us to judge.[22]The one matter we have left is the question of the cartoon. The Tribunal was plainly troubled by the cartoon; we can well see why it was. Mr Hare argues that it was not perverse of the Tribunal to fail to find that that had in itself created the environment of which the Claimant complained. To find that it had created the proscribed environment would require: first, that she gave evidence that it had; secondly, that that evidence was believed; and thirdly, that the Tribunal thought that it was behaviour that could in all the circumstances reasonably be regarded as having the proscribed effect. The Tribunal on balance found here that the cartoon did not, with everything else, have that effect; in other words, it did not accept what the Claimant said about the effect on her. The environment spoken of by the Act is the environment “for her”, i.e. for the complainant. It accepted that the conduct had been unwanted, but that is a different question. Ms Weeks argued that, as was recognised in Dhaliwal , the logical analysis which involves separating off the questions that have to be answered by a Tribunal should not obscure that findings of fact on each may be interrelated. We accept that, but it does not mean that conduct that is unwanted is conduct that creates the proscribed environment.[23]Mr Hare emphasised that part of the context to which the Tribunal had to have regard here was the highly critical way in which the Tribunal had approached the evidence of the Claimant herself. The conclusion it came to was in respect of a cartoon that on the findings of fact was one of a number of emails sent by Mr Sweeney that he thought might be amusing, in respect of which there was no complaint of the inappropriate nature of any other. Perversity is a very high hurdle. The cases use a variety of expressions, to which it is unnecessary to refer, save that the finding must be shown as wholly impermissible or one that would excite astonished gasps from a reader. We cannot say here that the finding of fact that there was no such environment as the Claimant claimed, in a context in which her claims in respect of other matters had been seen as heavily overstated, was perverse, and we must reject the appeal under this head.[24]We should not leave it, however, without noting that there was criticism of the approach of the Tribunal to evaluating the evidence of Mr Sweeney in paragraph 235. Taken in isolation, the Tribunal decided to accept Mr Sweeney’s evidence because of his “demeanour”. Later, when the Tribunal determined on 7 September 2010 that, because of the conduct of the hearing by her, the Claimant should pay the Respondent some costs, it said in its Judgment (Reasons given 23 December 2010) that it had used a rather strong expression in describing the allegations as “outrageously fantastic and beyond any credibility” because her allegations had been blown up such that the Claimant was suggesting that the individuals concerned were making statements which indeed were of that nature. Having heard evidence, says the Tribunal, from the individuals concerned, its view of the allegations was that they had been blown up to such a degree that they became outrageously fantastic and beyond credibility.[25]The finding of fact that the expressions were not used was one that the Tribunal was entitled, if approached properly, to come to. The reason for that conclusion does not rest upon the finding in respect of Mr Sweeney in isolation but, as Mr Hare points out, in respect of all the material that the Tribunal had set out in respect of all the witnesses, and must take into account not only the deficiencies it found in Mr Sweeney’s evidence in part but also the view that it had expressed, and as to which there can be, as we said at the beginning, no appeal, of the Claimant herself. Accordingly, as it seems to us, the Tribunal was entitled to take the view it did on this part of the appeal: the word “demeanour” did not sit in isolation. Reading the Tribunal Judgment as a whole, the conclusion it reached as to what Mr Sweeney had or had not done was based on the totality of material which justified that conclusion. The appeal on victimisation[26]Section 4(1) of the SDA 1975 provides, so far as relevant:
“A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has […].”
[27]A list of protected acts is then set out, as to which it is common ground that the Claimant had taken at least one of those protected acts. Sub-section (2):
“Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”
[28]The Tribunal was concerned here with an allegation made on 17 September 2008, set out at paragraph 184. The Claimant had alleged that she had heard Mr Watson say to a student entering his classroom and in the presence of a male colleague that he would only allow her into the classroom if she was prepared to “take the two of them on”, and he then moved towards her using “intimate body language”; two similar incidents had been seen “last year”. At paragraph 240 the Tribunal said this:
“In respect of the allegation raised in September 2008, whilst we have made no finding as to whether the allegation is true or not (because the allegation is raised contemporaneously and it is the delay in the September 2007 allegation that particularly convinced us of its falsehood) we never the less find that the motive of the Claimant was to give vent to her grudge against Mr Watson. The allegation was not made in good faith, that being so and applying s4(2) again, s4(1) is disapplied and the Claimant cannot rely on it.”
[29]It is common ground now before us that the Tribunal there made a mistake of law. It viewed section 4(2) as providing that sub-section (1) did not apply if either falsity or lack of good faith were established. It is common ground that both must be established if sub-section (1) is to be disapplied. However, the provision in section 4(1) requires two further things to be established before a Claimant can succeed: first, that she has been treated less favourably than in those circumstances the employer treats, or would treat, other persons; and secondly, that that is by reason of her having committed a protected act. The Tribunal said at paragraph 241:
“In any event, the less favourable treatment relied upon by the Claimant in this respect is the Back to Work interview with Mr Whitmore. We have found that was not conducted as the Claimant alleges. It did not amount to less favourable treatment. Mr Whitmore did not work for the Respondent, nor did he have any connection with the Respondent; he was a complete stranger to them. He was not acting under any form of inappropriate instruction from the Respondent. The manner in which the interview was conducted by Mr Whitmore was just as it would have been for any other person referred to him, whether or not such allegations had been raised by that individual.”
[30]This is a paragraph in which the Tribunal concluded that neither of the two further matters that we have identified had been substantiated. It, again, is a finding of fact. The Claimant criticised the nature of the Back to Work interview because, she said, the Tribunal had accepted that on the occasion concerned in November 2008, when she had seen an occupational health advisor, Mr Whitmore, at a meeting designed to secure arrangements for her to return to work after her illness, he had been more concerned with advising her that she should work elsewhere. The Tribunal had accepted that he had admitted in evidence that if she did leave the employment of the college, “she would not be without money because of the dole” (paragraph 188). This was hardly, she submitted, an appropriate Back to Work interview, when the advice was to turn her in the other direction. She gave more detailed evidence about her case (see paragraph 185). Her case was, in part, that Mr Whitmore had been instructed to say to her words such as that she should drop all the allegations she was making against the Respondent and that, if not, “men would get her on the dole queue or on the street”.[31]The Tribunal (paragraph 189) did not accept that that had been said. She complains to us that the Tribunal had found Mr Whitmore’s evidence to be muddled and unreliable, and such it did. However, the Tribunal had here to evaluate his evidence and her evidence, both of which it had found to be flawed, in the light of the overriding probabilities of the case. The conclusion it came to was one of fact. It seems to us that it cannot be characterised as perverse. It cannot be said to be reached in material misapprehension of fact; the Tribunal was therefore entitled to come to that conclusion. It having done so, the Tribunal was entitled to express the overall conclusion it did at paragraph 241. It follows that, despite the error of law in its application of the statute under section 4(2), the conclusion to which the Tribunal came upon its findings of fact, which it was entitled to make, was plainly and unarguably right. It follows that the appeal on victimisation must also be dismissed. Conclusion[32]Ms Weeks, though plainly concerned about aspects of the Judgment, recognised that she had those two grounds to advance before us and could not realistically ask us to examine other matters more widely. She invited us to consider whether we might look at fresh evidence, but we declined to do so. It was not a ground of appeal she had permission to advance to us, and we should add, in part at any rate, has been the subject of a decision by Rt Hon Sir Richard Buxton, as he now is, on 25 February 2012, when refusing leave to appeal upon the grounds then put forward to him. It follows that, whatever our views may be as to the nature of the offensive cartoon, the appeal must be, and is, dismissed.

Cited in 3 later judgments